https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5035

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NYAHURURU ELC APPEAL NO. E030 OF 2025 KENYA SERVICE........................................APPELLANT SAMUEL KINIARU...................................RESPONDENT VS FOREST MWANGI (Being an appeal from the judgment of Hon. C.M Muhoro SRM delivered on 11th December, 2023 in Nyahururu CMC ELC Case No. E030 OF 2020) JUDGMENT Case before the lower Court 1. By a plaint dated 30th June 2020, the respondent herein, instituted a suit in the lower court to wit Nyahururu CMC ELC Case No. E030 OF 2021 seeking judgment against the appellant for a declaration that he, the respondent, is the legal owner of the parcel of land known as L.R Laikipia/Nyahururu/6777 and as such, he is entitled to its exclusive use as against the defendant. The respondent also sought costs of the suit. 2. As can be discerned from the averments/contentions in the plaint, the respondent’s suit was premised on the grounds that at all times material, he (the respondent) was the sole and absolute proprietor of all that parcel of land known and described as L.R No. Laikipia/Nyahururu/6777 (hereinafter referred to as the suit property); that by virtue of the registration, he is entitled to enjoyment of all the statutory rights conferred upon him and that he had been in exclusive use and possession of the suit property from May 2018 to June 2020 when the appellant, through its servants, staff, employees, persons acting under it or through it, started interferring with his exclusive use and possession of the suit property. 3. Terming the actions of the appellant complained of unlawful and prejudicial to him, the respondent instituted the suit hereto seeking the reliefs listed in paragraph 1 above. 4. Upon being served with the summons to enter appearance and the suit papers, the appellant filed a statement of defence, dated 6th November 2020, in which it denied the allegations levelled against it and contended that the suit property forms part of forest land; that the forest land was never gazetted rendering it available for alienation. 5. For the reasons given in paragraph 4 above, appellant contended that the title held by the respondent was obtained illegally, through illegal excission of forest land. 6. When the suit came up for hearing, the respondent relied on his witness statement dated 30th June 2020 which is a restatement of his pleaded case. The respondent also produced the documents contained in his list of documents, dated 30th June 2020 as Pexbt 1-4. These are title deed for the suit property, letter from the National Land Commission to Kibatia & Company Advocates, dated 25th May 2017; Certificate of official search in respect of the suit property and Registry Index Map. 7. The respondent informed the court that he acquired the suit property through purchase; that he did a search which confirmed the authentity of the title before he purchased the suit property and that the suit property is not part of the forest. The respondent further informed the court that the government issued him with a title deed and that the appellant never applied to cancel the title deed issued to him. 8. In cross examination, the respondent stated that he bought the suit property from Paul Mwati; that he did not have the sale agreement before court and that the letter from National Land Commission was issued before he bought the land. As to whether the suit property is in the forest, he asserted his claim that the suit property is not part of the forest. He further stated that the land was previously owned by a tea company. 9. In re-examination, the respondent inter alia stated that there is no gazette notice showing his land is forest land. 10. The Court record/proceedings of the lower court indicate that despite having been afforded the opportunity to present its case, the defendant did not attend court to present its case. Consequently, the defense case was closed by the Court. 11. The Court record further shows that attempts by the defendant to set aside the order closing the defence case for purpose of affording it an opportunity to present its case were futile as the application was dismissed by the trial court and parties directed to file submissions. 12. Upon considering the case urged before him, the learned trial magistrate entered judgment in favour of the plaintiff/respondent as sought in his plaint. In doing so, the learned trial magistrate stated/held:- “...The plaintiff testified and closed his case. The defendant failed to call a witness despite being given chances to do so. The plaintiff produced a copy of the title deed to the suit land. It shows that the plaintiff is the registered proprietor... From the above Section 26, the certificate of title is to be taken as prima facie evidence that the person named therein is the proprietor of that land. Section 24 and 25 above, in essence, do provide that it is the title holder who is entitled to the proprietary rights comprised in the subject land. The defendant’s witness did not come to court to contest the title of the plaintiff. It is therefore my finding that as against the defendant, the plaintiff is the absolute proprietor of the suit land. The evidence of the plaintiff above was not controverted. I am of the view that the plaintiff has proved his case against the defendant on a balance of probabilities... I hereby enter judgment in his favour against the defendant and I issue the following orders: 1. A declaration that the plaintiff is the legal owner of L.R No. Laikipia/Nyahururu/6777 and as such entitled to its exclusive use as against the defendant; and 2. The defendant shall bear the costs of this suit.” The Appeal 13. Dissatisfied, the appellant appealed to this Court on the grounds that the learned trial magistrate erred in law and in fact by:- i) Failing to decide the plaintiff’s suit on the evedential yardstick of balance of probabilities based on its uncontested facts, unrebutted evidence and unchallenged evidence; ii) Failing to appreciate and consider that the land in dispute is a gazetted forest area and therefore not available for private ownership, allocation or alienation; iii) Failing to consider and evaluate the defendant’s pleadings, evidence and submissions on record thereby arriving in one sided judgment wholly in favour of the plaintiff; iv) Failing to analyze and weigh the evidence of the defendant against the plaintiff as required and thereby occasioning a miscarriage of justice; v) Disregarding its documentary evidence demonstrating that the suit property is public land under government gazettement, which directly rebutted the plaintiff’s claims; vi) Delivering judgment without giving cogent reasons as to why its documentary evidence was disregarded contrary to duty to give reasoned decision; vii) Delivering an erroneous judgment thereby occasioning it grave injustice. 14. The appellant urges this honourable court to:- a) Set aside the impugned judgment and decree dated 11th December 2023 and all consequential orders; b) Allow the appeal and dismiss the respondent’s prayers as prayed in the plaint dated 30th June 2020; c) Issue an eviction order to the respondent from the suit property L.R Laikipia/Nyahururu/6777 which is a gazetted forest area; d) In the alternative to the above prayers, the matter be reverted back to the lower court for retrial to allow its evidence to be factored in during the judgment; e) That this honourable court be pleased to make a finding that the land the subject being gazetted forest area is public land not available for private ownership, allocation or alienation as per the documentary evidence provided by it; f) Condemn the respondent to pay costs of the suit; g) Any other relief that this hounourable court may deem fit. 15. The appeal was disposed of by way of written submissions. SUBMISSIONS Appellant’s submissions 16. In its submissions dated 28th April 2026, the appellant faults the learned trial magistrate for having failed to consider its filed documentary evidence and its submissions. It is the appellant’s case that if the learned trial Court had considered its filed documentary evidence and submissions, it would not have allowed the respondent’s suit. 17. Terming its appeal merited, the appellant urges this Court to allow it with costs to it. Respondent’s submissions 18. In his submissions dated 17th June 2026, the respondent gives an overview of what happened in the lower court leading to closure of the appellant’s case without being afforded an opportunity to present its case and identifies two issues for the court’s determination. These are; i) Whether the learned trial magistrate correctly found that he had proved his case to the required standard and ii) Whether the appeal is merited. 19. As to whether the learned trial magistrate correctly found that he had proved his case to the required standard, the respondent gives an overview of his evidence before the lower court and submits/addresses the Court as follows:- “...before a title deed is issued, a survey is normally carried out and the different parcels of land are allocated parcel numbers and eventually the RIM is prepared and registered. The custodian of the RIM is the Survey of Kenya. The RIM produced by the respondent is still in existence and valid, the same having never amended or revoked. The appellant did not bring to the attention of the court the existence of any case filed with the aim of revoking the said RIM. Moreover, the appellant never counterclaimed for cancellation of the RIM and by extension the appellant’s title to the said parcel of land. The title deed for the said parcel of land and the RIM legally recognize the existence of the said parcel of land. The two documents are government documents which are valid unless otherwise. The foregoing evidence pointed out to the fact that the respondent held a title that was procedurally and lawfully registered in his name and which explains why the appellant did not seek cancellation of the respondent’s title......The appellant did not produce any map that would place the said parcel of land in a gazetted forest reserve. On his part, the respondent produced RIM which clearly shows that the said parcel of land is legally recognized. Having not produced any documentary evidence that would place the said parcel of land in government forest reserve, it was speculative to allege that the said parcel was in the said reserve. The evidence on record in the form of RIM showed that the parcel of land is not in a gazetted forest reserve. The appellant therefore did not lay a basis for its claim over the said parcel of land. Additionally, the appellant failed to produce the alleged gazette notice or prove the alleged illegality in acquisition process and the factual basis upon which the respondent’s title ought to be impeached. The appellant failed to call any witnesses...despite being afforded numerous chances to do so. Accordingly, the allegations contained in the statement of defence remained mere averments incapable of displacing the respondent’s evidence...” 20. Pointing out that there was no evidence adduced by the appellant that could be evaluated by the trial court, the respondent states that the aappellant was on several occasions afforded opportunity to present its case and submits that the learned trial magistrate cannot be faulted for determining the dispute on the basis of the evidence that was properly before it. Analysis and determination 21. In exercise of the duty vested in this court as a first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard, see Selle & another vs. Associated Motor Boat Co. Ltd (1968)E.A 123, Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988)KLR 348. 22. As pointed out herein above, the appellant’s case was closed by the trial court after the appellant failed to attend court to present its case despite having been afforded opportunity to do so. 23. The appellant, through its advocate on record, moved the trial court for re-opening of the defense case for purpose of affording it a further chance to produce its evidence. That application was denied. No reasons were given by the learned trial magistrate for refusal to allow the appellant’s application. Although the reason for refusal of the application may be inferred from the court record, the fact that the defendant had been given several chances to defend its case which chances it failed to utilize, that inference cannot form a good reason for failure by the learned trial magistrate to account for the refusal to grant the orders sought in the appellant’s application. 24. The impact of the trial court’s decision of closing the defendant’s case without a hearing was to render the appellant’s claims or contentions in his statement of defence not proven as no evidence was adduced capable of proving those issues. Despite that being the case, the appellant in the instant appeal, seems to suggest that the trial court had an obligation to consider the documents filed in support of its evidence, when the same had not been formally admitted as part of the court’s record. 25. To the extent that the appeal is premised on the trial court’s failure to consider the appellant’s filed documents, when the documents had not been admitted in evidence, thereby making them part of the official record of the court, I find the appeal to be misadvised or premised on missaprehension of the law. In that regard, see the case of Kenneth Nyaga Mwige v Austine Kiguta & 2 other (2015) e KLR where the Court of Appeal stated/held as follows, concerning production of documentary evidence:- “…. Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents – this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record…” 26. Whilst the appeal ought to fail on the ground that the learned trial magistrate had no legal duty to rely on filed documents when the same had not formally being admitted into evidence, thereby being made part of the official court record, a review of the pleadings filed in the lower court shows that the main issue for determination in that case is whether the suit property was unprocedurally created from gazetted forest land, hence public land, which was unavailable for alienation in favour of the respondent or any other person. 27. The issue as to whether the suit property was created from forest land hence public land, was not determined by the trial Court and could not be determined in the absence of any evidence adduced by the defendant capable of proving that fact. 28. Although the defendant’s conduct was short of what is expected of a diligent litigant, based on the fact that the learned trial magistrate did not give reasons for dismissing the appellant’s application for re-opening the suit to accord it an opportunity to present its evidence and that the defence filed by the defendant touches on public interest namely determination as to whether the suit property was hived from ungazetted forest land hence public land, in exercise of the discretionary power vested in this court under Sections 3A and 78 of the Civil Procedure Act and Order 42 Rule 26 of the Civil Procedure Rules, l am of the considered view that the order which commends itself in the peculiar circumstances of this case, is to order re-trial of the case with a view of affording the defendant an opportunity to present its case. 29. The upshot of the foregoing is that the appeal succeeds to the extend that, I revert the case back to the lower court for retrial, that is to say hearing and consideration of the defence case. 30. I make no order as to cost. 31. Orders accordingly. Judgement dated, signed and delivered at Nyahururu this 29th day of July, 2026 through Microsoft teams. L. N. WAITHAKA JUDGE In the presence of:- Ms. Ngira for the Appellant Ms. Rotich h/b for Mr Nderitu Komu for the Respondent Court Assistant: Bedan